BY ABDON M. PALLASCH
Chicago Sun-Times Political Reporter
CHICAGO--The first question isn't: Can Rahm win? It's: Can Rahm run?
Sunday, Rahm Emanuel announced in a video posted on a website that he is preparing to run for mayor of Chicago. But two of Chicago's top election lawyers say the state's municipal code is crystal clear that a candidate for mayor must reside in the town for a year before the election.
That doesn't mean they must simply own a home in the city that they rent out to someone else. They must have a place they can walk into, keep a toothbrush, hang up their jacket and occasionally sleep, the lawyers say.
Another three election lawyers say Emanuel could be thrown off the ballot on a residency challenge. None says Emanuel will have it easy.
Today, Emanuel launches his "listening tour" of Chicago neighborhoods -- taking his message and open ears, he says, to Chicago's "grocery stores, L stops, bowling alleys and hot dog stands."
Though he was widely expected to run, Sunday's video was his first statement of his intentions since Mayor Daley announced he would not seek another term. Friday, Emanuel left Washington and his job as White House chief of staff.
Ironically, President Obama would have no problem coming back to Chicago to run for mayor because he never rented out his home and has come back to stay there on rare occasions.
"He has a physical location that he owns and has exclusive right to live in," said attorney Jim Nally.
But Emanuel's problem as he prepares to run for mayor is that he rented out his house, and the tenant refuses to back out of the lease.
"The guy does not meet the statutory requirements to run for mayor," said attorney Burt Odelson. "He hasn't been back there in 18 months. Residency cases are usually very hard to prove because the candidate gets an apartment or says he's living in his mother's basement. Here the facts are easy to prove. He doesn't dispute he's been in Washington for the past 18 months. This is not a hard case."
Emanuel could argue that he has maintained ownership of the home, voted absentee earlier this year, pays property taxes on his house, lists the address on his driver's license, registers his car there, and always intended to return. Cook County judges give great deference to a candidate's intent.
In 2001, prosecutors charged the Rev. Donald Luster falsely used his grandfather's address in Dixmoor to run for mayor when he really lived in Park Forest with his wife and family.
Neighbors of Luster's Park Forest home testified they saw him there all the time -- morning, noon and night -- his Cadillac parked in front, Luster working the barbecue in the backyard, having guests over.
"Rev. Luster wants to barbecue in one backyard and run for mayor from another," Assistant State's Attorney Donna Lach said.
But despite all that testimony, Judge Ray Jagielski ruled that Illinois election law gives great deference to where people say they live, and Luster said he lived with his grandfather in Dixmoor.
The difference between Luster and Emanuel is that Luster could stay at his grandfather's house if he wanted, said attorney Jim Nally. Emanuel's tenant won't let him in.
"I've talked to the guy, and they're pissed," Odelson said of the tenants.
Odelson was one of the lawyers on George W. Bush's team during the Florida recount. Since then, he has represented mostly Democrats, and he worked on signature-gathering for two of Emanuel's likely opponents, Sheriff Tom Dart and the Rev. James Meeks.
Illinois municipal code requires that to run for mayor of a town in Illinois, "You must be a registered voter, and you must have resided there for one year prior to the election," Nally said.
The only exception to that is for "active members of the military" who return to to Illinois "immediately" upon the end of their service.
So while plenty of political people go to work in Washington, D.C., or business people go spend weeks in New York or other places, they have to come home pretty regularly to qualify under that standard, the experts say.
"When he was a congressman, his wife and family lived here, and he would fly home on the weekends," Nally said. "He had a place to sit on the sofa, to keep a toothbrush."
But when Emanuel agreed to become chief of staff, the family moved out to D.C. and the home was rented out to another family that now refuses to break the lease and clear the way for Emanuel to move back in. Emanuel could come back to Chicago to vote, but he could not stop at the house he owns on his way to the polling place, and that does not meet the residency test to run for mayor, Nally said.
On Nov. 29, assuming Emanuel has filed to run for mayor, Nally, Odelson or some other attorney working for one of Emanuel's opponents will likely file the objection, which will be decided by the Chicago Board of Elections and then likely appealed to the Cook County Circuit Court, the Appellate Court and perhaps even the state Supreme Court.
Residency challenges over the years have hinged on whether candidates could show some token form of residence they maintained -- a room in their parents home; an apartment with nothing more than a futon and a refrigerator with pizza and Coke where a state legislator said he went one night a week to maintain residency.
Another of Emanuel's likely rivals for mayor, City Colleges chief Gery Chico, on Sunday called for Emanuel to fully lay out his role in seeking convicted former Gov. Rod Blagojevich's help in trying to get Obama senior adviser Valerie Jarrett appointed to the U.S. Senate.
"Two officials from the Chicago Board of Elections have clearly stated that the overriding legal issue is intent, and the fact that Rahm owns a home and votes in Chicago means he's a Chicagoan -- regardless of his opponent's old-style political efforts to limit the choice for voters," Emanuel spokeswoman Lori Goldberg said.
Actually, Chicago Board of Elections officials have said, with the caveat that they cannot comment on specific cases and they won't know what objections will be raised against mayoral candidates until Nov. 29, that they start with the presumption of intent if a candidate maintains a home in Chicago and votes absentee there.
"It's the sense of the election board that if you keep ownership of the property, keep your registration there, you've voted absentee, as far as we know he hasn't registered anywhere else, it's just like members of the military who serve overseas in Iraq -- we don't deny them the right to vote; people who take corporate assignments overseas, and lease out their home as a fact of life, it doesn't mean they've left permanently," Chicago Board of Elections spokesman Jim Allen said.
"If you are a registered voter and continue to vote from your residence, you establish what we consider the intent to be a resident of the city of Chicago," Chicago Election Board Chairman Langdon Neal told CBS2Chicago.